Less than six months after the City's new zoning code went into effect, giving community and market gardens a defined space within the city’s code for the first time, Councilman Brian O’Neill, of the 10th District, has proposed amendments that require gardens to receive special approval from the Zoning Board of Adjustment (ZBA) – a potentially lengthy, expensive and discouraging process.

On January 24, City Council will vote on Councilman O’Neill’s proposed zoning code amendments, which among other changes require that community and market gardens in CMX-2 and CMX-2.5 districts be treated as "special exceptions" and require ZBA approval.

Councilman O’Neill’s amendments

When the new zoning code was adopted in August, community gardens and market farms were “permitted as of right,” meaning no zoning approval would be required. Under O’Neill’s amendments, gardens in CMX-2 and CMX-2.5 – two neighborhood commercial mixed-used districts – will need ZBA approval.

Though the full City Council has not voted on the amendments yet, the changes were voted out of the Committee on Rules, and because of Philadelphia’s pending ordinance doctrine, the Department of Licenses & Inspection can begin enforcing O’Neill’s amendments.

Prior to these changes, a garden group could file for a zoning permit with L&I, pay a $100 fee, and obtain a $25 use registration permit – a total of $125.

According to Amy Laura Cahn, founder and director of the Garden Justice League Initiative at the Public Interest Law Center of Philadelphia (PILCP), under the amendments a group will have to pay the initial $100 fee, a $250 fee to appear before ZBA and the $25 fee for the use registration permit. The garden group will also need to provide a letter of support from a registered community organization [RCO], post notice of what they are proposing to do for 21 days, get a tax certificate that verifies no taxes are owed, and then appear before the ZBA with this documentation.

If a garden group is incorporated as an LLC or a non-profit, the group will need to be represented before the ZBA by legal council – a considerable additional cost, Cahn said.

In addition, each garden will have to provide scaled design drawings, which do not necessarily have to be done by a paid professional, but which could very well add to the total costs.

“Creating this level of bureaucracy and legislating community participation is just a barrier,” Cahn said. “It’s not adding value.”

Reasoning for the changes

O’Neill’s office did not respond to PlanPhilly’s requests for comment, but according to Cahn and McCabe, the councilman created the amendments to ensure that community and market gardens are created and maintained by the communities they are created in – not by outsiders.

Cahn said if that is the reasoning, legislation is not necessary.

“The vast majority of gardens in the city are not only vetted in the communities, they’re rooted in the communities, and communities have had a voice in what happens on [their] block and very directly benefited from food production [and] from the creation of open space,” she said.

McCabe said she was told the amendments are intended to ensure neighbors have a say in their local gardens and that strangers cannot come in and build gardens without community approval.

“To this I say we have hundreds of gardens in the city that neighbors have built,” she said. “Where are these strangers coming in and building these gardens, and why are we thinking this is the norm?”

McCabe said during a hearing on the proposoed amendments, one individual did stand and complain about the smell of a community garden near his house.

McCabe argues that neighbors do not always agree. There are plenty of examples where 50 people want a community garden and one or two people object or say they would rather have a parking lot, she said and added that there are safeguards to prevent gardens from harming a neighborhood or being nuisances.

Garden advocates’ concerns

The amendments will apply to both future gardens and the 70 existing gardens in the CMX-2 and CMX-2.5 districts.

Cahn said this puts a significant strain on commuity gardens with limited financial resources and challenges neighborhood institutions like Norris Square Neighborhood Project, which has 23 garden parcels in CMX-2. She said she hopes that, at the very least, existing gardens can be exempt from O’Neill’s amendments.

It is unclear why the amendments are for CMX-2 and CMX-2.5 specifically. Of all the council districts, O’Neill’s district has the least amount of this land. PlanPhilly’s Jared Brey reported that Councilwoman María Quiñones-Sánchez, whose district will be most affected by the changes, plans to offer an amendment to the bill before the full Council vote.

McCabe said she is concerned that these changes in CMX-2 and CMX-2.5 could just be the beginning and that future amendments could apply these changes to other zoning classifications.

Some have questioned why these amendments are surfacing now, less than six months after the new code has been in place, before the scheduled first-year review and after years of award winning public engagement, which helped shape the new code.

Additionally, McCabe and Cahn say these changes go against the City’s existing initiatives, like Greenworks Philadelphia, which aim to make Philadelphia the greenest city in the country.

“It goes very much against the green plan,” McCabe said. “The sad part is that right now the nation is looking to us. They are looking to Philadelphia because we are cutting edge… and then we go and do something like this.”

About the author

Christine Fisher, Transportation reporter

From 2012-2014 Christine covered transportation, writing about everything from pedestrian concerns to bicycle infrastructure, bridges, trail networks, public transit and more. Her favorite assignments sent her bushwhacking through Philadelphia’s yet-to-be-cleared bike trails, catching a glimpse of SEPTA’s inner workings or pounding the pavement to find out what pedestrians really think. Christine also covered community news for Eyes on the Street, where her work ranged from food sovereignty to public art and urban greening. She first joined PlanPhilly in fall 2011 as an intern through a partnership with Temple University’s Philadelphia Neighborhoods website.